SERIES B PREFERRED STOCK PURCHASE AGREEMENT dated as of March 20, 2008 by and between WOLVERINE TUBE, INC. and THE ALPINE GROUP, INC.
EXECUTION
VERSION
dated
as
of March 20, 2008
by
and
between
WOLVERINE
TUBE, INC.
and
THE
ALPINE GROUP, INC.
TABLE
OF CONTENTS
Page
|
|||
DEFINITIONS
|
2
|
||
1.1
|
Definitions
|
2
|
|
ARTICLE II
|
PURCHASE
AND SALE
|
2
|
|
2.1
|
Closing
|
2
|
|
2.2
|
Closing
Deliveries.
|
2
|
|
ARTICLE III
|
REPRESENTATIONS
AND WARRANTIES
|
4
|
|
3.1
|
Representations
and Warranties of the Company
|
4
|
|
3.2
|
Disclaimer
of Other Representations and Warranties.
|
5
|
|
3.3
|
Representations
and Warranties of the Purchaser
|
5
|
|
ARTICLE IV
|
OTHER
AGREEMENTS OF THE PARTIES
|
7
|
|
4.1
|
Transfer
Restrictions.
|
7
|
|
4.2
|
Furnishing
of Information
|
8
|
|
4.3
|
Integration
|
8
|
|
4.4
|
Indemnification
|
8
|
|
ARTICLE V
|
CONDITIONS
|
9
|
|
5.1
|
[Omitted].
|
9
|
|
ARTICLE VI
|
MISCELLANEOUS
|
9
|
|
6.1
|
[Omitted].
|
9
|
|
6.2
|
[Omitted].
|
9
|
|
6.3
|
Fees
and Expenses
|
9
|
|
6.4
|
[Omitted].
|
9
|
|
6.5
|
Entire
Agreement
|
9
|
|
6.6
|
Notices
|
9
|
|
6.7
|
Amendments;
Waivers
|
10
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6.8
|
Construction
|
10
|
|
6.9
|
Successors
and Assigns
|
10
|
|
6.10
|
No
Third-Party Beneficiaries
|
10
|
|
6.11
|
Governing
Law; Venue; Waiver of Jury Trial
|
11
|
|
6.12
|
Survival
|
11
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6.13
|
Execution
|
11
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Severability
|
11
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||
6.15
|
Adjustments
in Share Numbers and Prices
|
11
|
i
This
Series B Preferred Stock Purchase Agreement (this “Agreement”)
is
entered into and dated as of March 20, 2008 (the “Closing Date”), by and
between WOLVERINE TUBE, INC., a corporation incorporated under the laws of
the
state of Delaware (the “Company”),
and
THE ALPINE GROUP, INC., a corporation incorporated under the laws of the State
of Delaware (the “Purchaser,”
and
together with the Company, the “Parties”
and
each, individually, a “Party”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act, as amended, and Rule 506 promulgated
thereunder, the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to purchase from the Company, certain securities of the
Company pursuant to the terms set forth herein.
WHEREAS,
the Company has authorized a new series of convertible preferred stock
designated as the Series B Convertible Preferred Stock of the Company (the
“Series
B Preferred Stock”),
having the rights, preferences, privileges and restrictions set forth in the
Series B Preferred Stock Certificate of Designations (the “Series
B Certificate of Designations”),
attached hereto as Exhibit
A,
which
Series B Preferred Stock shall be convertible into the Common Stock, par
value $0.01 per share, of the Company (the “Common
Stock”)
in
accordance with the terms of the Series B Certificate of
Designations.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby acknowledged, the Company and the Purchaser, agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, capitalized terms
used herein shall have the meanings set forth in Annex A hereto:
ARTICLE
II
PURCHASE
AND SALE
2.1 Closing.
Subject
to the terms and conditions set forth in this Agreement, at the Closing, the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company, 10,000 Shares for a purchase price of $1,000 per Share
and an aggregate purchase price of $10,000,000 (the “Aggregate
Purchase Price”).
The
Closing shall take place at the New York offices of Purchaser Counsel at 10:00
a.m. local time, on the Closing Date.
2.2 Closing
Deliveries.
(a) At
the
Closing, the Company shall deliver or cause to be delivered to the Purchaser
the
following:
(i) a
certificate representing 10,000 Shares registered in the name of the
Purchaser;
(ii) evidence
that the Series B Certificate of Designations has been filed with the Secretary
of State of the State of Delaware and become effective on or prior to the
Closing Date;
2
(iii) the
Series B Preferred Stock Registration Rights Agreement, duly executed by the
Company;
(iv) the
Series A Holders Consent, duly executed by Plainfield, Alkest and the
Company;
(v) the
Stockholders’ Agreement Supplement, duly executed by PSSMF and Alkest;
(vi) the
Voting Agreement Amendment, duly executed by the Company, PSSMF and Alkest;
(vii) the
legal
opinion of Company Counsel, in the form of Exhibit F-1,
executed by such counsel and the legal opinion of in-house counsel of the
Company in the form of Exhibit F-2,
executed by such counsel;
(viii) a
certificate dated as of the Closing Date and signed by the Chief Executive
Officer of the Company certifying that no Bankruptcy Event (as such term is
defined in the Series B Certificate of Designations) has occurred;
(ix) a
certificate of the Secretary of the Company, dated as of the Closing Date,
certifying as to: (A) the signatures and titles of the officers of the Company
executing each of the Transaction Documents to which the Company is a party;
and
(B) resolutions of the Board authorizing and approving all matters in connection
with the Transaction Documents to which the Company is a party and the
Transactions;
(x) a
cash
fee in the amount of $100,000;
(xi) the
Company shall have delivered evidence reasonably satisfactory to the Purchaser
that the Company has obtained amendments (collectively, the “Facilities
Amendments”) to certain provisions of the Amended and Restated Credit Agreement
among the Company and its U.S. subsidiaries, the lenders named therein and
Wachovia Bank, National Association (“Wachovia”),
as
administrative agent, as amended (the “Revolving
Credit Facility”),
and
the Amended and Restated Receivables Purchase Agreement and the Receivables
Sales Agreement among the Company, Wachovia and the other parties thereto,
each
as amended (collectively, the “Receivables
Credit Facility”),
in
each case on terms reasonably satisfactory to the Purchaser;
(xii) the
Company shall have delivered to the Purchaser a letter confirming its intention
to seek approval of the Series A Amendment (as such term is defined in the
Series A Holders Consent) as soon as it may practically do so; and
(xiii) any
other
documents reasonably requested by the Purchaser or Purchaser
Counsel.
(b) At
the
Closing, the Purchaser or an authorized officer thereof shall deliver or cause
to be delivered to the Company the following: (i) the Aggregate Purchase Price,
in U.S. Dollars and in immediately available funds, by wire transfer to an
account designated in writing by the Company for such purpose; and (ii) each
Transaction Document (including the Series B Preferred Stock Registration Rights
Agreement, the Series A Holders Consent, the Stockholders’ Agreement Supplement
and the Voting Agreement Amendment) to which the Purchaser is a signatory,
duly
executed by the Purchaser.
3
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Purchaser, as of the Closing
as
follows:
(a) Authorization;
Enforcement.
The
Company has the requisite power and authority to enter into and to consummate
the Transactions and otherwise to carry out its obligations under the
Transaction Documents to which the Company is a party. The execution and
delivery of each of the Transaction Documents to which the Company is a party
by
the Company and the consummation by the Company of the Transactions have been
duly authorized by all necessary action on the part of the Company and no
further consent or action is required by the Company, its Board or, subject
to
approval of the Transactions by the Series A Holders, its stockholders.
Each Transaction Document to which the Company is a party has been (or upon
delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with
its
terms.
(b) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents to which the
Company is a party by the Company and the consummation of the Transactions
do
not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws
or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding
to
which the Company or any Subsidiary is a party or by which any property or
asset
of the Company or any Subsidiary is bound or affected after giving effect to
the
Series A Holders Consent and the Facilities Amendments (except for such
conflicts, defaults, rights or violations as would not have a Material Adverse
Effect), or (iii) result in a violation of any Law.
(c) Filings,
Consents and Approvals.
Neither
the Company nor any Subsidiary is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any Governmental Authority or other Person in connection
with
the execution or delivery by the Company of the Transaction Documents or the
consummation of the Transactions, other than (i) approval of the
Transactions by the Series A Holders; (ii) the filing of the Series B
Certificate of Designations pursuant to Section
2.2(a)(ii);
(iii) the filing with the Commission and the effectiveness of the
registration statement pursuant to the Series B Preferred Stock Registration
Rights Agreement; (iv) applicable Blue Sky filings; and (v) the consents,
amendments and acknowledgements contemplated by Sections
2.2(a)(iv)
and
2.2(a)(xi).
(d) Issuance
of the Securities.
The
Securities are duly authorized and, when issued and paid for in accordance
with
the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens and not subject to preemptive rights
or similar rights of stockholders. The Company has authorized and has reserved,
and covenants to continue to reserve, a number of shares of Common Stock equal
to at least the number of shares of Common Shares issuable upon conversion
of
the Shares and in satisfaction of any other obligation or right of the Company
to issue Common Shares pursuant to the Transaction Documents, and in each case,
any securities issued or issuable in exchange for or in respect of such
securities (the “Underlying
Shares”).
The
issuance of the Securities to the Purchaser will not subject the Purchaser
to
any liability or obligation of any kind in respect of or relating to the
operation of the business of the Company.
4
(e) Certain
Fees.
Except
as provided in Section 6.3
and as
set forth in Schedule 3.1(e),
no
brokerage or finder’s fees or commissions are or will be payable by the Company
based on arrangements made by the Company or any of its Affiliates or any Person
on behalf of any of them to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with respect to the
Transactions.
The
Purchaser shall not have any obligation based
on
any arrangements made by the Company or any of its Affiliates or any Person
on
behalf of any of them
for fees
or claimed fees of a type contemplated in this Section
3.1(e)
that may
be due in connection with the Transactions. The Company shall indemnify and
hold
harmless the Purchaser, its respective employees, officers, directors, agents,
and partners, and their respective Affiliates, from and against all claims,
Losses, damages, costs (including the costs of preparation and attorney’s fees)
and expenses suffered in respect of any claimed or existing fees that are based
on arrangements made
by
the Company or any of its Affiliates or any Person on behalf of any of
them,
as such
fees and expenses are incurred.
(f) Private
Placement.
Neither
the Company nor any Person acting on the Company’s behalf has sold or offered to
sell or solicited any offer to buy the Securities by means of any form of
general solicitation or advertising. Neither the Company nor any of its
Affiliates nor any Person acting on the Company’s behalf has, directly or
indirectly, at any time within the past six (6) months, made any offer or sale
of any security or solicitation of any offer to buy any security under
circumstances that would (i) eliminate the availability of the exemption from
registration under Regulation D under the Securities Act in connection with
the
offer and sale of the Securities as contemplated hereby, or (ii) cause the
offering of the Securities pursuant to the Transaction Documents to be
integrated with prior offerings by the Company for purposes of any applicable
Law or stockholder approval provisions, including, without limitation, under
the
rules and regulations of the Trading Market.
(g) Disclosure.
The
Company has provided all information requested by the Purchaser or its
representatives and has not knowingly omitted to provide any materials relating
to any such request.
3.2 Disclaimer
of Other Representations and Warranties.
THE
COMPANY HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
OF
ANY NATURE WHATSOEVER RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
THE
BUSINESS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR OTHERWISE IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED HEREBY, OTHER THAN THOSE REPRESENTATIONS
AND
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS.
3.3 Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Company as of the Closing as
follows:
(a) Organization;
Authority.
The
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the requisite power
and authority to enter into and to consummate the Transactions and otherwise
to
carry out its obligations thereunder. The execution, delivery and performance
by
the Purchaser of the Transaction Documents to which it is a party have been
duly
authorized by all necessary action on the part of the Purchaser and no further
consent or action is required by the Purchaser in connection with the execution
and delivery. Each of the Transaction Documents to which the Purchaser is a
party has been duly executed by the Purchaser and, when delivered by the
Purchaser in accordance with terms hereof will constitute the valid and legally
binding obligation of the Purchaser, enforceable against it in accordance with
its terms.
5
(b) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the
Purchaser and the consummation of the Transactions do not and will not conflict
with or violate any provision of the Purchaser’s certificate of incorporation or
bylaws.
(c) Filings,
Consents and Approvals.
The
Purchaser is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any
Governmental Authority or other Person in connection with the execution or
delivery by the Purchaser of the Transaction Documents to which it is a party
or
the consummation of the Transactions.
(d) Investment
Intent.
The
Purchaser is acquiring the Securities as principal for its own account for
investment purposes and not with a view to distributing or reselling such
Securities or any part thereof in violation of applicable securities laws,
without prejudice, however, to the Purchaser’s right at all times to sell or
otherwise dispose of all or any part of such Securities in compliance with
applicable federal and state securities laws. Nothing
contained herein shall be deemed a representation or warranty by the
Purchaser to hold the Securities for any period of time. The
Purchaser understands that the Securities have not been registered under the
Securities Act, and therefore the Securities may not be sold, assigned or
transferred in the U.S. other than pursuant to (i) an effective registration
statement under the Securities Act or (ii) an exemption from such registration
requirements. The Purchaser acknowledges that it is able to bear the financial
risks associated with an investment in the Shares and that it has received
such
information as it has deemed necessary or appropriate to conduct its due
diligence investigation and has sufficient knowledge and experience in investing
in companies similar to the Company so as to be able to evaluate the risks
and
merits of its investment in the Company.
(e) Certain
Fees.
Except
as provided in Section 6.3,
no
brokerage or finder’s fees or commissions are or will be payable by the
Purchaser based on any arrangements made by the Purchaser or any of its
Affiliates or any Person on behalf of any of them to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or
other
Person with respect to the Transactions. The Company shall not have any
obligation based on any arrangements made by the Purchaser or any of its
Affiliates or any Person on behalf of any of them for fees or claimed fees
of a
type contemplated in this Section 3.3(e)
that may
be due in connection with the Transactions. The Purchaser
shall
indemnify and hold harmless the Company, its employees, officers, directors,
agents, and partners, and their respective Affiliates, from and against all
claims, Losses, damages, costs (including the costs of preparation and
attorney’s fees) and expenses suffered in respect of any claimed or existing
fees based
on
any arrangement made by such Purchaser or any of its Affiliates or any Person
on
behalf of any of them,
as such
fees and expenses are incurred.
(f) Purchaser
Status.
The
Purchaser is an “accredited investor” within the meaning of Rule 501(a) of
Regulation D under the Securities Act.
(g) General
Solicitation.
The
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(h) Reliance
on Exemptions.
The
Purchaser understands that the Securities are being offered and sold to it
in
reliance on specific exemptions from the registration requirements of U.S.
federal and state securities Laws and that the Company is relying in part upon
the truth and accuracy of, and the Purchaser’s representations and warranties
set forth herein in order to determine the availability of such exemptions
and
the eligibility of such Purchaser to acquire the Securities.
6
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) Securities
may only be disposed of pursuant to an effective registration statement under
the Securities Act or pursuant to an available exemption from the registration
requirements of the Securities Act, and in compliance with any applicable state
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement or to the Company or pursuant
to
Rule 144, except as otherwise set forth herein, the Company may require the
transferor to provide to the Company an opinion of counsel selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration under the Securities Act. Notwithstanding the foregoing, the
Company hereby consents to and agrees to register on the books of the Company
and with its transfer agent, without any such legal opinion, any transfer of
Securities by the Purchaser to an Affiliate of the Purchaser.
(b) The
Purchaser agrees to the imprinting on any certificate evidencing Securities,
except as otherwise permitted by Section
4.1(c),
of a
restrictive legend in substantially the form as follows, together with any
additional legend required by (i) any applicable state securities laws and
(ii) any Trading Market upon which such Securities may be
listed:
“THESE
SECURITIES AND THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE
NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING, THESE
SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OF THESE SECURITIES
MAY
BE PLEDGED TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A) UNDER
THE SECURITIES ACT IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY
SUCH
SECURITIES.”
(c)
Certificates
evidencing Securities shall not be required to contain such legend or any other
legend (i) while a registration statement covering the resale of such
Securities is effective under the Securities Act, and (ii) following any
sale of such Securities pursuant to Rule 144, or (iii) if such legend is
not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the
Commission). Following the Effectiveness Date (as such term is defined in the
Series B Preferred Stock Registration Rights Agreement) or at such earlier
time
as a legend is no longer required for certain Securities, the Company will,
no
later than three (3) Trading Days following the delivery by the Purchaser to
the
Company or the Company’s transfer agent of a legended certificate representing
such Securities, deliver or cause to be delivered to the Purchaser a certificate
representing such Securities that is free from all restrictive and other
legends. Except as may be required to comply with a change in law, the Company
may not make any notation on its records or give instructions to any transfer
agent of the Company that enlarge the restrictions on transfer set forth in
this
Section 4.1(c).
7
(d)
The
Company acknowledges and agrees that the Purchaser may from time to time pledge
or grant a security interest in some or all of the Securities in connection
with
a bona fide margin agreement or other loan or financing arrangement secured
by
the Securities and, if required under the terms of such agreement, loan or
arrangement, the Purchaser may transfer pledged or secured Securities to the
pledgees or secured parties. Such a pledge or transfer would not be subject
to
approval of the Company and no legal opinion of the pledgee, secured party
or
pledgor shall be required in connection therewith. Further, no notice shall
be
required of such pledge. From and after the Effectiveness Date, at the
Purchaser’s expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Securities may reasonably request
in connection with a pledge or transfer of the Securities, including the
preparation and filing of any required prospectus supplement under Rule
424(b)(3) of the Securities Act or other applicable provision of the Securities
Act to appropriately amend the list of “Selling Stockholders”
thereunder.
4.2 Furnishing
of Information.
The
Company covenants that it will take such action as any holder of Securities
may
reasonably request, all to the extent required from time to time to enable
such
Person to sell such Securities without registration under the Securities Act,
within the limitations of the exemptions provided by Rule 144.
4.3 Integration.
The
Company shall not, and shall use its best efforts to ensure that no Affiliate
of
the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the
sale
of the Securities to the Purchasers, or that would be integrated with the offer
or sale of the Securities for purposes of the rules and regulations of the
Trading Market.
4.4 Indemnification.(a)
To the fullest extent lawful, subject to the limitations in Section 4.4(b),
the
Company shall indemnify and hold harmless the Purchaser and Related Persons
from
and against any and all Losses, as incurred, directly or indirectly arising
out
of, based upon or relating to (i) any breach by the Company of any of the
representations, warranties, covenants or other agreements made by the Company
in any of the Transaction Documents, or any allegation by a third party that,
if
true, would constitute such a breach, or (ii) any Proceeding brought by or
against any Person, directly or indirectly, in connection with or as a result
of
any of the Transactions. The indemnification and expense reimbursement
obligations of the Company under this paragraph shall be in addition to any
liability that the Company may otherwise have and shall be binding upon and
inure to the benefit of any of the respective successors, assigns, heirs and
personal representatives of the Purchaser and any such Related Persons. If
the
Company breaches its obligations under any Transaction Document, then, in
addition to any other liabilities the Company may have under any Transaction
Document or applicable Law, the Company shall pay or reimburse the Purchaser
on
demand for all costs of collection and enforcement incurred by the Purchaser
(including reasonable attorneys fees and expenses). Without limiting the
generality of the foregoing, the Company specifically agrees to reimburse the
Purchaser on demand for all costs of the Purchaser incurred (i) in enforcing
the
indemnification obligations in this Section
4.4,
and
(ii) in connection with the amendment, modification or supplementation of
any Transaction Document.
(b) The
Company shall not be required to indemnify any Purchaser or any Related Persons
for any Persons pursuant to Section
4.4(a)(i)
for
Losses arising from breaches of representations, warranties, covenants or other
agreements made by the Company (i) unless the aggregate of all Losses for which
the Company would, but for this Section 4.4(b)(i), be liable exceeds $100,000
on
a cumulative basis (and then from the first dollar); and (ii) to the extent
such
Losses are in excess of the aggregate proceeds to the Company paid by the
Purchaser under all of the provisions of this Agreement. The amount of any
Losses incurred by the Purchaser or any Related Person shall be reduced by
the
net amount the Purchaser or Related Party receives (after deducting all
reasonable attorneys' fees, expenses and other costs of recovery) from any
insurer of the Company pursuant to a policy held by the Company or other party
liable for such Losses.
8
ARTICLE
V
CONDITIONS
5.1 [Omitted].
ARTICLE
VI
MISCELLANEOUS
6.1 [Omitted].
6.2 [Omitted].
6.3 Fees
and Expenses.
The
Company shall pay to the Purchaser upon the Closing the legal, accounting,
consulting, travel and all other out-of-pocket expenses incurred by the
Purchaser and Purchaser Counsel in connection with the preparation and
negotiation of the Transaction Documents and otherwise in connection with the
Transactions (the “Fees
and Expenses”).
The
Company shall pay all transfer agent fees, stamp taxes and other taxes and
duties levied in connection with the issuance of any Securities.
6.4 [Omitted].
6.5 Entire
Agreement.
The
Transaction Documents, together with the exhibits and schedules thereto and
the
other agreements referenced herein or therein, contain the entire understanding
of the parties with respect to the subject matter hereof and supersede all
prior
agreements and understandings, oral or written, with respect to such matters,
which the parties acknowledge have been merged into such documents, exhibits
and
schedules. At or after the Closing, and without further consideration, each
Party will execute and deliver to the other Party such further documents as
may
be reasonably requested in order to give practical effect to the intention
of
the parties under the Transaction Documents. Each Party acknowledges that the
other Party has made any representations, warranties, promises or commitments
other than as set forth in the Transaction Documents, including any promises
or
commitments for any additional investment by such Party.
6.6 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified
in
this Section
6.6
prior to
5:00 p.m. (New York City time) on a Trading Day, (ii) the Trading Day after
the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number specified in this Agreement later than 5:00
p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York
City
time) on such date, (iii) the Trading Day following the date of sending, if
sent
by nationally recognized overnight courier service, specifying next business
day
delivery, or (iv) upon actual receipt by the party to whom such notice is
required to be given if delivered by hand. The address for such notices and
communications shall be as follows:
If
to the Company:
|
WOLVERINE
TUBE, INC.
|
000
Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxxxxx 00000
|
|
Attn: Xxxxx
Xxxx
|
|
Phone:
(000) 000-0000
Fax:
(000) 000-0000
|
9
If
to a Purchaser:
|
To
the address set forth under the Purchaser’s name on the signature pages
attached hereto.
|
In
each case, with a copy (which shall not
constitute
notice)
to:
|
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx, XX 00000-0000
|
Facsimile
No.: (000) 000-0000
|
|
Attn:
Xxxxxx X. Xxxx, Esq. and
Xxxx X. Xxxxxxx, Esq.
|
or
such
other address as may be designated in writing hereafter, in the same manner,
by
such Person by two (2) Trading Days’ prior notice to the other party in
accordance with this Section
6.6.
6.7 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and the
Purchaser, or, in the case of a waiver, by the Purchaser. Any waiver executed
by
the Purchaser shall be binding on the Company and all holders of Securities.
No
waiver of any default with respect to any provision, condition or requirement
of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right.
6.8 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the Parties to express their mutual intent, and no rules of strict
construction will be applied against either Party. The representations and
warranties in this Agreement are the product of negotiations among the Parties
and are for the sole benefit of the Parties. Any inaccuracies in such
representations and warranties are subject to waiver by the Parties in
accordance with this Agreement without notice or liability to any other Person.
In some instances, the representations and warranties in this Agreement may
represent an allocation among the Parties of risks associated with particular
matters regardless of the knowledge of any of the Parties. Consequently, except
as expressly provided in Section
4.4,
Persons
other than the Parties may not rely upon the representations and warranties
in
this Agreement as characterizations of actual facts or circumstances as of
the
date of this Agreement or as of any other date.
6.9 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser. The Purchaser may from time to time assign its rights
under this Agreement to any Person or Persons to whom such Purchaser assigns
or
transfers any Securities; provided
such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof and of the applicable Transaction Documents
that apply to the “Purchaser.”
6.10 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except that each Related
Person is an intended third party beneficiary of Section
4.4
and (in
each case) may enforce the provisions thereof directly against the parties
with
obligations thereunder.
10
6.11 Governing
Law; Venue; Waiver of Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of New York. Each party agrees
that all Proceedings concerning the interpretations, enforcement and defense
of
the Transactions (whether brought against a party hereto or its respective
affiliates, directors, officers, stockholders, employees or agents) shall be
commenced exclusively in the state and U.S. federal courts sitting in the City
of New York, Borough of Manhattan. Each party hereto hereby irrevocably submits
to the exclusive jurisdiction of the state and U.S. federal courts sitting
in
the City of New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any of the Transactions (including
with respect to the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any Proceeding, any claim that
it is not personally subject to the jurisdiction of any such court, or that
such
Proceeding is improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such Proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by applicable Law. Each party hereto hereby irrevocably waives, to
the
fullest extent permitted by applicable Law, any and all right to trial by jury
in any Proceeding arising out of or relating to any of the Transaction Documents
or the Transactions. If any party shall commence a Proceeding to enforce any
provisions of any Transaction Document, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its reasonable attorneys
fees and other reasonable costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.
6.12 Survival.
The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery, exercise and/or conversion of the
Securities, as applicable.
6.13 Execution.
This
Agreement may be executed in two (2) or more counterparts, all of which when
taken together shall be considered one (1) and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party, it being understood that both parties need not sign the
same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature page were an original
thereof.
6.14 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt in good faith to agree upon a valid and enforceable
provision that is a reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Agreement.
6.15 Adjustments
in Share Numbers and Prices.
In the
event of any stock split, subdivision, dividend or distribution payable in
Common Shares or Common Share Equivalents, combination or other similar
recapitalization or event occurring after the date hereof, each reference in
this Agreement to a number of shares or a price per share shall be amended
to
appropriately account for such event.
11
IN
WITNESS WHEREOF, the parties hereto have caused this Series B Preferred
Stock Purchase Agreement to be duly executed and delivered by their respective
authorized signatories as of the date first indicated above.
WOLVERINE
TUBE, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE OF PURCHASER FOLLOWS.]
12
PURCHASER: | |
THE ALPINE GROUP, INC. | |
By:
|
|
Name:
|
|
Title:
|
|
Address for Notice: | |
Xxx
Xxxxxxxxxxx Xxxxx
Xxxx
Xxxxxxxxxx, Xxx Xxxxxx
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxx
|
13
ANNEX
A
to
“Affiliate”
of
a
Person means any other Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
the
first Person.
“Aggregate
Purchase Price”
has
the
meaning set forth in Section
2.1.
“Alkest”
means
Alkest, LLC, a Delaware limited liability company.
“Board”
means
the board of directors of the Company.
“Business
Day”
means
any day except Saturday, Sunday and any day on which banking institutions in
New
York City are authorized or required by law or other governmental action to
close.
“Closing”
means
the closing of the purchase and sale of the Shares pursuant to Section 2.1.
“Closing
Date”
has
the
meaning set forth in the Preamble.
“Commission” means
the
U.S. Securities and Exchange Commission.
“Common
Share Equivalents”
has
the
meaning ascribed thereto in the Series B Certificate of
Designations.
“Common
Shares”
means
the shares of Common Stock of the Company and any securities into which such
shares may hereafter be reclassified.
“Common
Stock”
has
the
meaning set forth in the recitals to this Agreement.
“Company
Counsel”
means,
collectively, (i) Xxxxxxxx Xxxxxxxx, Esq., the Company’s General Counsel, and
Xxxxx & Xxxxxxx LLP, counsel to the Company.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Facilities
Amendments”
has
the
meaning set forth in Section 2.2(a)(xi).
“Fees
and Expenses”
has
the
meaning set forth in Section
6.3.
“Governmental
Authority”
means
any government or quasi-governmental or political subdivision or any agency,
authority, bureau, central bank, commission, department or instrumentality,
self-regulatory entity or any court, tribunal, grand jury or arbitrator, in
each
case whether foreign or domestic.
“Laws”
means
any federal, state, local, municipal or other law, common law, rule, regulation,
order, judgment, injunction, decree, code, ordinance, ruling, policy, guideline
or common, decision, arbitral or administrative law or principle of law or
equity or other restriction of any Governmental Authority to which the Company
or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected.
A-1
“Lien”
means
any lien, charge, claim, security interest, encumbrance, right of first refusal
or other restriction.
“Losses”
means
any and all damages, fines, penalties, deficiencies, liabilities, claims, losses
(including loss of value), judgments, awards, settlements, taxes, actions,
obligations and costs and expenses in connection therewith (including, without
limitation, interest, court costs and fees and expenses of attorneys,
accountants and other experts, and any other expenses of litigation or other
Proceedings (including costs of investigation, preparation and travel) or of
any
default or assessment), but not including punitive damages unless such punitive
damages are awarded to a Person in a Third Party Claim.
“Material
Adverse Effect”
means
any event, occurrence, fact, circumstance, violation, development or change,
that, individually or in the aggregate with any other event, occurrence, fact,
circumstance, violation, development or change, has had or could reasonably
be
expected to have: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, or (ii) a material adverse
effect on the results of operations, assets, business, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole,
or (iii) a material impairment of the Company’s or any Subsidiary’s ability to
perform fully on a timely basis its obligations under any Transaction
Document;
provided,
however,
that
“Material Adverse Effect” shall exclude any such effect arising out of or in
connection with: (A) general economic or business conditions or changes therein,
including changes in interest or currency rates or commodity prices, or any
act
of terrorism, similar calamity or war or any escalation or worsening of the
same; provided that in each case no such condition, change or act
disproportionately affects the Company; or (B) the negotiation, execution,
announcement or existence or terms of this Agreement or the performance of
this
Agreement or the consummation of the transactions contemplated hereby (including
any occurrence or condition arising out of the identity of or facts relating
to
the Purchaser).
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
Governmental Authority (or an agency or subdivision thereof) or other entity
of
any kind.
“Plainfield”
means
Plainfield Asset Management LLC and any permitted successor or assignee
thereof.
“Proceeding”
means
an action, claim, suit, grievance, arbitration, complaint, inquiry, notice
of
violation, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition).
“PSSMF”
means
Plainfield Special Situations Master Fund Limited, a Cayman Island
entity.
“Purchaser
Counsel”
means
Proskauer Rose LLP, counsel to the Purchaser.
“Related
Person” means
any
Affiliate of the Purchaser and any officer, director, partner, advisor,
controlling person, employee or agent of the Purchaser or any of their
respective Affiliates.
“Rule
144”
and
“Rule
424”
means
Rule 144 and Rule 424, respectively, promulgated by the Commission pursuant
to the Securities Act, as such Rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
A-2
“Securities”
means
the Shares and the Underlying Shares issued or issuable (as applicable) to
the
Purchaser pursuant to the Transaction Documents.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Series
A Certificate of Designations”
means
the Certificate of Designations of Series A Preferred Stock of the
Company.
“Series
A Holders”
means
holders of the Series A Preferred Stock.
“Series
A Holders Consent”
means
that certain Series A Holders Consent and Agreement, dated as of the Closing
Date, by and among the Series A Holders, the Company and the Purchaser,
substantially in the form of Exhibit
C,
as the
same may be amended, modified or supplemented from time to time.
“Series
A Preferred Stock”
means
the series of convertible preferred stock of the Company designated as the
Series A Preferred Stock in the Series A Certificate of
Designations.
“Series
B Certificate of Designations”
has
the
meaning set forth in the recitals to this Agreement.
“Series
B Preferred Stock”
has
the
meaning set forth in the recitals to this Agreement.
“Series
B Preferred Stock Registration Rights Agreement”
means
that certain Registration Rights Agreement dated as of the Closing Date, by
and
between the Company and the Purchaser, substantially in the form of Exhibit B,
as the
same may be amended, modified or supplemented from time to time.
“Shares”
means
the shares of Series B Preferred Stock which are being purchased by the
Purchaser pursuant to this Agreement.
“Stockholders’
Agreement Supplement”
means
that certain Stockholders’ Agreement Supplement, dated as of the Closing Date,
by and among Purchaser, PSSMF and Alkest, substantially in the form of
Exhibit
D,
as the
same may be amended, modified or supplemented from time to time.
“Subsidiary”
means
any corporation (or other legal entity) of which at least a majority of the
outstanding capital stock having voting power under ordinary circumstances
to
elect directors of such corporation shall at the time be held, directly or
indirectly, by the Company, by the Company and one or more Subsidiaries or
by
one or more Subsidiaries.
“Third
Party Claim”
means
the assertion of any claim or demand made by, or any action, proceeding or
investigation instituted by, any Person not a party to this
Agreement.
“Trading
Day”
means
(a) any day on which the Common Shares are listed or quoted and traded on a
Trading Market, or (b) if the Common Shares are not then listed or quoted
and traded on a Trading Market, then any Business Day.
“Trading
Market”
means
the New York Stock Exchange or, at any time the Common Shares are not listed
for
trading on the New York Stock Exchange, any other national securities exchange,
other trading market or quotation system, if the Common Shares are then listed
or quoted on such exchange, market or system.
A-3
“Transaction
Documents”
means
this Agreement, the Series B Certificate of Designations, the Securities, the
Series B Preferred Stock Registration Rights Agreement, the Voting Agreement
Amendment, the Stockholders’ Agreement Supplement, the Series A Holders Consent
and any other documents or agreements executed in connection with the
transactions contemplated by this Agreement.
“Transactions”
means
the transactions contemplated by the Transaction Documents.
“Underlying
Shares”
has
the
meaning set forth in Section
3.1(d).
“U.S.”
means
the United States of America.
“Voting
Agreement Amendment”
means
that certain Voting Agreement Amendment, dated as of the Closing Date, by and
among the Company, the Purchaser, PSSMF and Alkest, substantially in the form
of
Exhibit
E,
as the
same may be amended, modified or supplemented from time to time.
A-4